THIS MEMORANDUM TAKES ACCOUNT OF
AMENDMENTS MADE BY THE HOUSE OF REPRESENTATIVES TO THE BILL AS
INTRODUCED

Sex Discrimination Amendment Bill (No. 1)
200 1 2 0

Outline

This Bill amends the Sex
Discrimination Act 1984 (the SDA)
to enable the States and Territories to
legislate to limit restrict access to assisted
reproductive technology (ART) services to
married couples (or married couples who are not living separately
and apart from their spouse) and couples in a de
facto marriage . on
the basis of a person’s marital
status . The
Bill is in substance the same as the Sex
Discrimination Amendment Bill (No. 1) 2001 that was
introduced in the previous Parliament as passed amended by
Government amendments in the House of
Representatives in the
previous Parliament .

The
proposed amendments to the Sex Discrimination
Act will ensure that the SDA does not prevent States and Territories from legislating to limit access to ART services to
married couples (or married couples who are not living separately
and apart from their spouse) and de facto couples. This will prevent State and Territory
legislation being rendered inoperative on account of inconsistency
with Commonwealth law. The amendments will not, however, permit States and Territories
to discriminate between married and de facto
couples. Nor
will they permit States and Territories to impose an additional
criterion of a specified period of cohabitation for de facto
couples. State and Territory legislation
imposing, requiring, or permitting restrictions on access to ART
services on the basis of marital status, is not inconsistent with s
22 of the Sex Discrimination Act. This
will prevent State and Territory legislation being rendered
inoperative on account of inconsistency with Commonwealth
law

.

The Bill
is not intended to regulate access to ART services directly.
Rather, the Bill will ensure that the S ex D iscrimination A ct does not prevent States and
Territories from legislating for the purpose of restricting access to ART
services to married or de fact o couples ,
should they wish to do so. This is appropriate on the basis of marital
status , given the ir
responsibilities of States and Territories
in relation to the regulation of the provision of medical care and
treatment.

Financial Impact

The
amendments are expected to have a minor and unquantifiable
financial impact on Government revenue.

Notes on clauses

Clause 1 - Short title

1. This is a
formal item which specifies that the amending Bill, if enacted,
would be known as the Sex Discrimination Amendment Act
(No. 1) 200 2 1 0 .

Clause 2 - Commencement

2.
The Bill, if enacted, would commence on the day that it receives
the Royal Assent.

Clause 3 - Schedules

3.
This item explains that the item in the Schedule to the Bill amends
the Act specified in the Schedule.

4.
Under s 22 of the Sex Discrimination Act 1984 (the SDA), it
is unlawful for a person who provides goods or services, or makes
facilities available, to discriminate against a person on the basis
of a person’s marital status. “Marital
status” is defined in ss 4(1) of the SDA as the status or
condition of being single, married, married but living separately
and apart from one’s spouse, divorced, widowed or the de
facto spouse of another person. The term “de facto
spouse” is defined as a person who lives with another person
of the opposite sex as husband or wife (as appropriate) on a bona
fide domestic basis although not legally married.

5.
The Infertility Treatment Act 1995 (Victoria) sought to
restrict access to certain reproductive procedures including
artificial insemination and in-vitro fertilisation
procedures. The Victorian Act sought to restrict access to a
women woman who was either :

· married
and living with her husband on a genuine domestic basis;
or

· living
with a man in de facto relationship.

6.
The effect of these restrictions was that single women could not
lawfully access these procedures. These restrictions were
challenged in the Federal Court of Australia in McBain v State
of Victoria & Ors (unreported, 28 July 2000, [2000]
FCA 1009) (“ McBain ”) .
The Court held that these restrictions were inconsistent with
s 22 of the SDA and were therefore inoperative by reason of
s 109 of the Commonwealth Constitution. Section 109 of
the Constitution states

When a law of a State is inconsistent with a
law of the Commonwealth, the latter shall prevail, and the former
shall, to the extent of the inconsistency, be invalid.

7. In 2001, the Australian Catholic Bishops
Conference and the Australian Episcopal Conference of the Roman
Catholic Church (the Bishops) b rought proceedings Re Sundberg
and McBain; Ex Parte the Australian Catholic Bishops Conference
& anor (“ Re
Sundberg” ) in
the original jurisdiction of the High Court seeking
order s to
quash the decision of Sundberg J in
McBain . The Bishops were granted a partial fiat by the
Attorney-General to ensure that they had standing to bring
proceedings in the High Court to argue that there is no
inconsistency between the Victorian Act and the SDA. The
Attorney -General also
intervened in the proceedings under s.78A of the Judiciary Act
1903 as the proceedings
raised a constitutional issue.

8. On 18 April 2002, the High Court handed down its
decision in these
proceedings ( Re McBain; Ex
Parte the Australian Catholic Bishops Conference Re
Sundberg ( Re McBain; Ex
parte Australian Catholic Bishops
Conference [2002] HCA 16 ) . The effect
of the High Court’s decision is that the decision of Sundberg J
stands. The High Court did not deal with or decide the issue
of inconsistency between the Victorian Act and the SDA.
Rather the decision was based on questions of procedure,
jurisdiction and the exercise of
judicial discretion .

9. The Government considers has consistently maintained that
the SDA was never intended to prevent
the States and Territories should to be able to restrict access to
assisted reproductive technology services on
the basis of marital status in the way that the Victorian Act
sought to do to married couples (or
married couples who are not living separately and apart from their
spouse) and de facto couples if women who are married or living in defacto
relationships if the State or Territory
wishes to do so . The amendments to the SDA will ensure that can
occur. The
Commonwealth has limited constitutional power to legislate in this
field - it is consistent with the States’ responsibilities in
relation to the regulation of the provision of medical care and
treatment that they be permitted to regulate access to ART
services.

The scope of the amendment - What are ART
services?

10.
Assisted Reproductive Technology or ( ART ) refers
to the full range of technology that is available to assist in the
achievement of fertilisation by non-coital means. Generally
speaking, this technology “assists” reproduction
because it circumvents problems that make pregnancy difficult or
impossible. Whilst ART services are generally used to treat
infertility, they can be used to assist reproduction by non-coital
means in the absence of infertility.

11.
ART services are not exhaustively defined under proposed ss 22(1D)
but include in-vitro fertilisation (IVF), artificial
insemination (AI), and gamete, zygote and embryo
transfers. These are
some of the more common ART services. However, the definition
is not limited to these services. It will cover any other service that is designed to
assist in fertilisation by non-coital means.

How does this affect State
and Territory legislation?

12. The
amendments will apply where State or Territory legislation deals
with access to ART services. The
amendments will ensure that the SDA does not prevent States and
Territories from legislating to limit access to ART services to
married couples (or married couples who are not living separately
and apart from their spouse) and de facto
couples . The amendments make it
clear that restrictions on a
person’s access to ART services based on marital status are not unlawful in
terms of the SDA, if those restrictions are imposed, required or
permitted by or under a law of a State or Territory .
This applies to pre-existing State and
Territory legislation as well as State and Territory legislation
that is enacted after this Bill is enacted. The
amendments will not, however, permit States and Territories to
discriminate between married and de facto couples. Nor will
they permit States and Territories to impose an additional
criterion of a specified period of cohabitation for de facto
couples. The amendments will apply to
pre-existing State and Territory legislation as well as State and
Territory legislation that is enacted after this Bill is
enacted.

13.
The proposed amendments to the SDA will ensure that State and
Territory legislation restricting access
to de aling with ART services
in this way is not
overridden. At the moment, legislation directly
restricting access to ART services exists only in South
Australia , Western Australia, and Victoria. Western Australia has recently passed
legislation that amends the Human Reproductive Technology Act
1991 (WA), to remove the restriction on women who are
single or in a de facto relationship with a person of the same sex
having access to ART services.

14.
In the Northern Territory, there is no legislation directly
restricting access to ART services. However, the Northern
Territory’s Anti-Discrimination Act expressly excludes the
provision of certain ART services from its operation. Under
proposed ss 22(1B), such an exclusion is taken to be a
restriction that is “permitted” for the purposes of
proposed ss 22 (1A).

15.
The Bill will commence upon Royal Assent. When the amending
Act commences, any provisions of State or Territory legislation (eg
the Infertility Treatment Act 1995 (Vic)) that have been
ruled inoperative, will revive. Although s 109 of the
Constitution describes inconsistent State laws as
“invalid”, this has been interpreted by the courts as
doing no more than making the State law inoperative while, and to
the extent that, there is an inconsistent Commonwealth law.
It follows that if a State law, which is inconsistent with a
Commonwealth law, is not repealed by the State legislature and
remains on the statute book, the repeal or amendment of the
Commonwealth law so as to remove the inconsistency has the result
that the State law will again operate. (See Butler v.
Attorney-General (Vic) (1961) 106 CLR 268 at 282-283. See
also University of Wollongong v. Metwally (1984) 158 CLR
447, 456 per Gibbs CJ.) A similar approach is adopted in
relation to Territory law. (See Northern Territory v GPAO &
Ors (1999) 196 CLR 553.)

What is the effect of the amendment on
States and Territories that do not have legislation restricting
access to ART services?

16.
In the absence of any State or Territory legislation in this area,
the SDA will continue to apply. In other words, if States or
Territories wish to limit access to ART services on the basis of
marital status or status as a de facto
spouse , they will need to enact legislation expressly
authorising these restrictions. In the absence of express
State or Territory legislation in this regard, or legislation like
that in the Northern Territory that permits restrictions (see
proposed ss 22(1B)), the terms of s 22 of the SDA will have
full force and will continue to prohibit discrimination based on
marital status in the provision of ART services .